DM v TH

[2023] NSWSC 1421

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

DM v TH [2023] NSWSC 1421

Hearing dates:

21 November 2023

Date of orders:

21 November 2023

Decision date:

21 November 2023

Jurisdiction:

Equity

Before:

Elkaim AJ

Decision:

See paragraph 42

Catchwords:

FAMILY LAW — Children — Paternity — Where a French court has recognised the paternity of a father not listed on a child’s birth certificate — Where admission made by the father in French proceedings that he was the father of the child — Whether orders can be made under s 21 of the Status of Children Act 1996 (NSW) to declare that the father is the father of the child — Whether order can be made under s 19 of the Births, Deaths and Marriages Act 1995 (NSW) that the father be included as the father of the child on the Register of Births, Deaths and Marriages.

Legislation Cited:

Births Deaths and Marriages Registration Act 1995 (NSW), s 19

Status of Children Act 1996 (NSW), s 21

Status of Children Regulation 2019 (NSW)

Uniform Civil Procedure Rules 2005 (NSW), r 11.8AA

Cases Cited:

Farnell v Penhalluriack (No 2) [2008] VSC 214

L & Ors v L [2013] NSWSC 916

Category:

Principal judgment

Parties:

DM (First Plaintiff)
BM (Second Plaintiff)
TH (Defendant)

Representation:

Counsel:
Mr J Bennett (Plaintiffs)

Solicitors:
Uther Webster & Evans Solicitors (Plaintiffs)

File Number(s):

2023/160769

JUDGMENT

1. The plaintiffs filed a summons on 19 May 2023. It has been served on the defendant, but he does not wish to play any part in the proceedings.

2. The first plaintiff is the daughter of the second plaintiff. The defendant is the father of the first plaintiff.

3. The first plaintiff was born in Australia in 2003. Her birth certificate records the name of her mother. The provision for the other parent is left blank. This was at the request of the defendant, made following the birth of the first plaintiff.

4. The purpose of the summons is to have a declaration that the defendant is the father of the first plaintiff and, in turn, that the defendant be included with that status in the Register of Births, Deaths and Marriages.

5. The declaration is sought under s 21(2) of the Status of Children Act 1996 (NSW). The inclusion in the register can be made under s 19(2) of the Births Deaths and Marriages Registration Act 1995 (NSW).

6. There are four affidavits before the court:

1. the affidavit of the first plaintiff sworn 9 May 2023;

2. the affidavit of the second plaintiff sworn 9 May 2023;

3. the affidavit of Maître Luc Brassier sworn 25 October 2023; and

4. the affidavit of Daniel Bennett affirmed 27 October 2023;

7. The plaintiffs’ affidavits describe the history of the relationship with the defendant, including legal proceedings taken in France, essentially to achieve similar orders to those sought here.

8. On 1 September 2023 Kunc J made orders stating:

1. the Court notes that:

1. the first and second plaintiffs are Australian citizens;

2. the proceedings concern amending an Australian birth certificate; and

3. the desired outcome being the amendments of the plaintiff Australian birth certificate, could not be obtained in a jurisdiction other than Australia.

2. By reason of the matters referred to in paragraph 1 the Court is satisfied that:

1. the claim has a real and substantial connection with Australia;

2. Australia is an appropriate forum for the resolution of the issues raised in the summons; and

3. by reason of the circumstances referred to in this paragraph and in paragraph 1 the Court should assume jurisdiction.

9. His Honour then granted leave to the plaintiffs to serve the summons and the plaintiffs’ affidavits on the defendant outside of Australia.

10. The affidavits of Mr Brassier and Mr Bennett relate to service of the proceedings upon the defendant in France. I am satisfied, based on these affidavits, that service was properly effected upon the defendant on 18 September 2023.

11. The defendant has played no part in the proceedings, did not enter an appearance, and did not appear today. This raises r 11.8AA of the Uniform Civil Procedure Rules 2005 (NSW). Being satisfied of service, I granted leave at the outset of the hearing for the matter to continue.

12. I also made an order that the matter proceed by closed court and the parties names be anonymised.

13. By way of history, derived from the affidavits of the plaintiffs, I note the following:

14. The second plaintiff met the defendant in France in 2001. A romantic relationship developed. The second plaintiff returned to Australia. In early 2002 the second plaintiff went back to France and resumed her relationship with the defendant.

15. The second plaintiff fell pregnant in March 2002. She returned to Australia in August 2002 to give birth. The defendant arrived in Australia in December 2002.

16. The defendant was present at the birth of the first plaintiff at a Sydney hospital in January 2003. He remained in Australia for about six weeks before returning to France.

17. Following the birth of the first plaintiff, the defendant told the second plaintiff that he did not wish to be included on the birth certificate as the first plaintiff’s father. The second plaintiff acceded to his wishes.

18. The defendant returned to Australia when the first plaintiff was six months of age. He remained in Australia until his relationship with the second plaintiff deteriorated, and then ended, so that he then returned to France.

19. When the first plaintiff was two and a half years of age, she and her mother travelled to France where they spent time with the defendant and his family. Trips of this nature then occurred on an annual basis over the next four or five years. During these trips the plaintiffs would reside with the defendant’s family. A continuing relationship developed with members of the defendant’s family.

20. Beginning when the first plaintiff was about four years of age, the second plaintiff from time to time requested the defendant to include the first plaintiff in a French birth certificate. The defendant persistently refused.

21. In 2017 the second plaintiff made another request of the defendant to include the first plaintiff in a French birth certificate. He again refused, so that the second plaintiff commenced proceedings in France to have her daughter “recognised under the French legal system as being the daughter of the Father.”

22. The defendant opposed the application, which was ultimately heard in the Libourne Court of Law and decided on 7 August 2020.

23. Under the heading “Reasons for the decision” the following is included:

1. The defendant “acknowledges that he is (the first plaintiff's) father, and the expert genetic report confirms the existence of this kinship link”;

2. “Consequently, it is appropriate to declare that (the defendant) … is the father of (the first plaintiff)”; and

3. A number of orders are then made concerning visitation and accommodation rights and contributions to the first plaintiff’s education and maintenance.

24. The French Court then made final orders which, relevantly, included an order that “mention of the judgment be entered into the margin of (the first plaintiff’s) birth certificate and any registry office document.”

25. The genetic expert report referred to in the French Court’s reasons arose from genetic testing that had been ordered by the court on 2 May 2019. The necessary samples were taken on 19 July from the first and second plaintiffs and 24 July 2019 from the defendant. The result was as follows:

“The comparison of the genetic profile of the child (the first plaintiff) with the genetic profile of (the defendant) and the genetic profile of (the second plaintiff) shows that (the defendant), in the absence of exclusion, may be the father of the child (the first plaintiff).

The probability of paternity, established in consideration of the three individuals - mother-father/daughter, is greater than 99.99999% (i.e., 99.99999 chances out of 100).

This result supports the probability according to which (the defendant) is the biological father of the child (the first plaintiff).”

26. The first plaintiff says she wants the orders made for three reasons:

“(a) I would like to have the personal and cultural recognition that comes with my father being recorded on my birth certificate;

(b) I would like to have my French heritage recognised on my birth certificate; and

(c) I would like to have the opportunity to seek from the French Government rights of citizenship, so that I can live and work and (sic) France in the future without being limited to visa restrictions that will apply if I do not have a French passport or French citizenship.”

27. There is nothing in any of the reasons given by the first plaintiff that suggest any improper or hidden agenda behind her request. To the contrary, the orders sought are logical and consistent with a person wishing to acknowledge the heritage of both her parents and to enjoy the entitlements (such as French citizenship) of her heritage.

28. I take the silence of the defendant as an indication, similar to his stance in the French proceedings, of opposition to the orders sought in the summons. This includes a resistance to being named as a parent on the Australian birth certificate.

29. The defendant’s silence does not however indicate any specific reason for the opposition. As noted in the French proceedings, he admits that he is the father of the first plaintiff.

The application under the Status of Children Act 1996 (NSW)

30. Section 21 states:

(1)   Any of the following persons may make an application to the Supreme Court for a declaration of parentage under this section:

(a)  a person who alleges that the relationship of parent and child exists between the person’s child and any named person, or

(b)  a person who alleges that the relationship of parent and child exists between the person and another named or identified person, or

(c)  the Registrar when seeking a determination that the relationship of parent and child exists between a named person and another named or identified person, or

(d)  the Director-General when seeking a determination that the relationship of parent and child exists between a named person and another named or identified person, or

(e)  a person prescribed by the regulations who seeks a determination that the relationship of parent and child exists between a named person and another named or identified person, or

(f)  a person who may be affected by the result who seeks a determination that the relationship of parent and child exists between a named person and another named or identified person.

(2)    On any such application, the Supreme Court may make a declaration that a named or identified person is a child’s parent.

(3)     A declaration of parentage may be made:

(a)  whether or not the parent or the child (or both) are alive, or

(b)  whether or not the child has been born.

(4)    If a declaration of parentage is made, the Registrar of the Division of the Court in which the order was made must immediately cause a copy of the declaration to be transmitted to the Registrar of Births, Deaths and Marriages to be dealt with under the Births, Deaths and Marriages Registration Act 1995.

31. Subsection (1)(b) of s 21 is applicable here.

32. The evidence in favour of parentage is overwhelming. It includes the second plaintiff stating that the defendant is the father, the results of the testing carried out in France, the consistent connection over many years between the first plaintiff and the defendant and finally, but probably most relevant, the admission made to the French Court by the defendant that he was the father of the first plaintiff.

33. I have had regard to the Status of Children Regulation 2019 (NSW) which refers to parentage testing needing to be done at an accredited laboratory. While I have no doubt that the facilities at the French laboratory were “par excellence”, I doubt it was accredited in Australia. In this case I do not think the point matters having regard to all of the other factors establishing parenthood that I have set out in the previous paragraph. This approach is consistent with the observations of Hallen J in L & Ors v L [2013] NSWSC 916, at [7]:

“The power of the Court under s 21 of the Act to make a declaration that a named or identified person is the parent of a child or children, is not confined to any particular evidentiary basis. The Court can, if satisfied that it is appropriate to do so, make that declaration on a basis other than the tender of a report of parentage testing procedures: Re: "M" [2002] NSWSC 158, per Campbell J at [7].”

34. I also note that, in regard to the standard of proof, his Honour adopted, at [12], the following observations of Bell J in Farnell v Penhalluriack (No 2) [2008] VSC 214 at [4]:

“Serious though the issue of paternity is, an application for a declaration of paternity is a civil application, and the standard of proof applicable in such proceedings is the ordinary civil standard, namely the balance of probabilities. As the High Court held in G v H in reference to the essentially beneficial nature of the paternity provisions of the Family Law Act 1975 (Cth), it was not necessary, in applications under those provisions, to prove paternity according to the higher civil standard that applies when the question involves a grave allegation. I think the paternity provisions of the Status of Children Act are analogous in this respect. Therefore, in an application for a declaration of paternity, it is sufficient to prove the facts according to the ordinary civil standard. The applicant does not have to achieve the higher civil standard discussed in Briginshaw v Briginshaw. The decision in G v H has overtaken the authority of earlier decisions that the higher standard was applicable."

35. Being satisfied on the balance of probabilities (if not on a higher standard) of the parentage of the first plaintiff and being satisfied that the motivation behind the summons is sound, I think it appropriate to make the declaration sought.

The application under the Births, Deaths and Marriages Registration Act 1995 (NSW)

36. Section 19 states:

(1)     The District Court may, on application by an interested person or on its own initiative, order—

(a)  the registration of a birth, or

(b)  the inclusion of registrable information about a birth or a child’s parents (including details of the marriage of a child’s parents) in the Register.

(1A)    Such an order may only be made in respect of a birth—

(a)  in the case of an order under subsection (1) (a), if the birth occurred in the State, in an aircraft during a flight to an airport in the State or on a ship during a voyage to a port in the State, and

(b)  in the case of an order under subsection (1) (b), if the birth has been registered under this Act.

(2)    If any court (including any court of another State or the Commonwealth) makes a finding about a birth or a child’s parents, the court may order registration of the birth or inclusion of registrable information about the birth or the parents in the Register.

37. The first thing to be observed about the section is that it appears to give the District Court the relevant jurisdiction. However, I think subsection (2) can be utilised here because it is inherent in my declaration concerning parentage that I have made a finding “about a birth or a child’s parents”.

38. It is also sensible that, if otherwise possible, both applications be made in the same court. The District Court could not make the declaration under the Status of Children Act.

39. Finally, I note that the first plaintiff has been registered in France as the daughter of the defendant. Registration in Australia is consistent with registration in France.

40. Accordingly, and for the same reasons that I am prepared to make the above declaration, I am also prepared to make the order that is sought in respect of the inclusion of the defendant in the register.

41. The summons does not seek any order as to costs. I think this is appropriate.

Final orders

42. I make the following orders:

1. Leave to the Plaintiffs to proceed pursuant to r 11.8AA of the Uniform Civil Procedure Rules 2005 (NSW)

2. An order that the matter proceed by closed court and the parties’ names be anonymised.

3. A declaration that pursuant to s 21 of the Status of Children Act 1996 (NSW) that TH is the father of DM.

4. An order that pursuant to s 19 of the Births, Deaths and Marriages Registration Act 1995 (NSW) that TH be included as father of DM in the Register of Births, Deaths and Marriages.

5. The Court notes that pursuant to s 21(4) of the Status of Children Act 1996 (NSW) the Registrar of this Court must immediately cause a copy of the declaration to be transmitted to the Registrar of Births, Deaths and Marriages to be dealt with under the Births, Deaths and Marriages Registration Act 1995 (NSW).

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Amendments

21 November 2023 - Removal of one word in para 23 replaced by (the first plaintiff's)

Decision last updated: 21 November 2023